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Trump Lawyer Says Constitution Bars Court Fight Over Groping

(Bloomberg) -- As the rest of the U.S. wrestles with holding sexual harassers to account, President Donald Trump is seeking to silence one of his most vocal critics -- a former contestant on his reality TV show who accused him of groping her and sued him for calling her a liar.

At a crowded Manhattan courtroom Tuesday, his lawyer asked a New York state judge to dismiss a defamation case by Summer Zervos, a contender on "The Apprentice" in 2005 who alleges he “ambushed” her without her consent on more than one occasion starting in 2007, kissing her on the mouth, touching her breast and pressing his genitals against her.

Attorney Marc Kasowitz said his objection to letting the case proceed is about following the U.S. Constitution, not putting anyone above the law.

"A state court may not exercise jurisdiction over the president of the United States while he or she is in office," Kasowitz said.

The judge didn’t immediately rule after an hour-long hearing. Regardless of what she decides, the case is likely to be appealed to the state’s highest court. That almost certainly guarantees that if the president is forced to testify, it won’t happen any time soon.

The suit may take years to resolve, due to "a lot of obstruction from Trump, refusal to schedule depositions, long delays in responding to discovery requests and defendants always stall," said Debra S. Katz, a lawyer who isn’t involved in the case.

Zervos claims Trump defamed her by denying that he groped her and branding women who accused him of similar behavior as liars. The claim stems from statements the then-candidate made following the release of the infamous "Access Hollywood" recording that featured him making crude comments about women.

Lawyers for Trump argue that if the case is allowed to move forward, evidence gathering should be delayed until he leaves office.

Trump has called the lawsuit politically motivated, saying that Zervos can’t hold him liable for engaging in political speech that’s protected by the First Amendment. He has said she continued to attempt to contact him and seek employment even after he made the alleged unwanted sexual advances only turned against him after he failed to accept an invitation to her restaurant.

Both sides have the right to automatically appeal any decision made by Supreme Court Justice Jennifer G. Schecter to a panel of judges in Manhattan, a process that will likely take months to complete. And the parties can then ask the state’s highest court in Albany to review the case, a challenge that could take as long as a year to complete.

Oral Arguments

On average, oral arguments are held 12 to 14 months after the Court of Appeals agrees to hear a case, and most appeals are decided in the session after they are argued, which would normally be four to six weeks later.

Trump’s argument that he’s immune from lawsuits in state court is based in part on the Supremacy Clause of the U.S. Constitution. He has cited the U.S. Supreme Court’s ruling in Paula Jones’s assault lawsuit against former President Bill Clinton, where the justices ruled her federal case could proceed. But the nation’s highest court explicitly stated that it wasn’t deciding if lawsuits in state court could proceed against a president.

Kasowitz said the Supremacy Clause protects the president and his ability to do his job. The president is a “unique officer” in the executive branch, his job is “24-7” and just the assertion of jurisdiction by a state court would interfere with his abilities to carry out his duties, the lawyer argued.

“The president is being hailed into court,” Kasowitz said. “And once the president is hailed into court there are innumerable obligations that flow from that.”

Katz, a partner at Katz, Marshall & Banks in Washington, said that argument didn’t help Clinton and isn’t likely to help Trump.

"That was a tactic that Clinton pursued and he lost on that and of course we know what happened with the Paula Jones lawsuit and the effect it ultimately had on his presidency," Katz said. Trump was “openly bragging on the ‘Access Hollywood’ tape that this is exactly how he treats women. He believes he can sexually assault women because he can get away with it. These are very strong allegations," she said.

Mariann Wang, an attorney for Zervos, argued that putting the case on hold for as long as seven years while Trump serves two terms would be a "drastic remedy" resulting in lost evidence as witnesses’ memories fade. She proposed working with Trump’s attorneys to take a videotaped deposition during his down-time at his Mar-a-Lago club in Florida.

Trump "cannot be allowed to purposely attack a woman who has accurately described his sexual groping and get off scot-free," Wang said.

If the case does go forward, Trump could open himself up to extremely broad questions about his treatment of women and would be forced to sit for depositions and provide documents, Katz said. Zervos has already requested documents from the Trump campaign for documents concerning “any woman alleging that Donald J. Trump touched her inappropriately.”

"Zervos’s attorneys will seek all documents about anyone who has accused Trump of touching them inappropriately," Katz said. "If that succeeds, as it should in a case like this, the president would have significant legal risk. The Supreme Court ruled 9-0 in 1997 that federal courts have jurisdiction to handle cases like this. She has a right to an orderly disposition of her claims."

The case is Zervos v. Trump, 150522/2017, New York Supreme Court, New York County (New York).

(An earlier version of this story corrected the time period that Trump claimed Zervos tried to contact him.)